By RON MCCARTHY
An officer needs to be prepared to be able to intelligently explain things after a use of force incident. Officers are rarely trained in the verbal skills and tactics necessary in describing a variety of important topics. These are areas where plaintiffs’ lawyers will try to “beat up” an officer.
The following is an example of a plaintiff’s lawyer questioning an officer in a deposition about the officer’s actions during a foot pursuit. The officer knew he had been following a felony suspect. When the suspect jumped from the vehicle he was driving and began to flee on foot, the officer naturally began to chase the suspect on foot. The officer had only run about 50 feet when the suspect turned and displayed a handgun. The suspect fired rounds at the officer. One of the rounds traveled almost 100 yards striking and killing a little girl. A plaintiff’s attorney contacted the parents of the victim and a law suit was instituted against the “deep pockets” of the police department and the city. In the deposition, take note of the plaintiff’s lawyer’s questions and how the lawyer manipulates the young officer (excerpt shown below).
So do you think what you’re telling us is – and you certainly believe you acted reasonably, don’t you?
I believe so.
You think that when you’re acting reasonably, and you have a suspect in a stolen–with stolen plates or a stolen vehicle, you said that you have to assume the worst. And that’s reasonable, isn’t it?
To me that is reasonable.
And it’s also reasonable, therefore, to assume the suspect has a gun? That’s reasonable, isn’t it?
That’s reasonable to me.
And it’s reasonable, therefore, to assume that if you set out on foot in chase of this suspect and yell that you are the police – it’s reasonable to assume that he may use that gun, isn’t it?
I can’t think of the mind-set of a suspect, but I don’t believe a reasonable person would shoot at the police.
So you don’t think it’s reasonable to think that a suspect who is running on foot from a police officer who you assume has a gun – it’s not reasonable to assume that he would use that gun, it that what you’re telling us?
I don’t know the suspect has a gun.
You said earlier that you assume the worst, and therefore you assume the suspect had a gun. Isn’t it also true that it’s therefore reasonable to assume the suspect would use the gun?
It’s not? All right. So when you are on the street and you are dealing with a fleeing felon who has a gun, you don’t assume that he will use that gun?
First, I wouldn’t know specifically that he had a gun.
Let me make sure you understand my question because that’s not what I was asking. What I intended to ask was, if you have a suspect that you believe - or, assume has a gun, and he’s running from you, and he’s got – running from a vehicle with stolen plates that’s run stop signs and gone through residential neighborhoods at high rates of speed, you’re saying it’s not reasonable to assume the suspect might not use that gun? Is that what you’re telling us?
First of all, I’m not going to agree. Is this a hypothetical that we’re talking?
Sure. You bet.
I don’t necessarily think it’s reasonable, no. Personally, I have chased many suspects on foot who have been armed and have not used the gun. I don’t think a reasonable person – I don’t think a reasonable suspect would be in the mind-set to shoot at the police.
You always assume that the suspects you’re chasing are going to act reasonably?
I don’t assume anything. I’ve just told you what I’ve experienced.
Preparation by the Officer
The single most important consideration in any litigation either civil or criminal is that the officer tells the truth. Any honest error or action on the part of the officer can be understood by a jury. Any departure from the truth is disastrous. In preparing for a lawsuit or criminal prosecution, the issue of truth is followed closely by the officer developing a controlled attitude and an aggressive mind set. Look upon the lawsuit or prosecution as another tactical environment that you must survive. The same factors that create survival in the field are relevant in litigation.
The officer must never quit (will to survive)
Civil litigation, as well as prosecution, will weigh heavily on police officers’ minds. There are occasions when the officer will be abandoned by the department when the incident in question involves politics or special interest groups or so called “community leaders.” When the Sheriff or Police Chief “leaves the officer out to dry,” so to speak, it almost always occurs so that the Sheriff or Chief can keep their job. The officer must remain steadfast and resolute in the face of tremendous pressure for several reasons:
If the officer allows the situation to impact too heavily upon him/her, this will have a devastating impact upon the officer’s family. Wives, children, husbands, mothers, and fathers all will suffer the anxiety and pain of the situation along with the involved officer. It is therefore the officer’s responsibility to be strong and resolute and maintain a positive attitude around family members and those who love him or her.
The officer has an obligation to other officers who may be involved in the incident and could be impacted by the poor performance of a weak and less than professional officer.
The agency has a right to expect the officer to be stable and competent and represent the agency well.
The officer must be in excellent mental condition
A lack of confidence and uncertainty can erode an officer’s ability to respond properly in the field or in court. The officer can lose confidence and be filled with doubt and anxiety if he or she has failed to be truthful regarding the smallest detail. The officer can gain confidence if the officer has good legal counsel, someone the officer trusts. The officer should listen to the advice and direction that his/her lawyer provides. The officer should not shrink from making suggestions to his or her attorney.
The officer will gain confidence when his or her legal counsel spends time in advising and preparing the officer for depositions, trial testimony and all aspects of the case both in and out of court. A competent expert witness should be consulted and involved early in the process. Prior to the officers being deposed, an expert witness should be involved in a tactical
analysis of the incident which includes all of the primary officers.
Psychologists who are well trained for law enforcement are an excellent asset for the department and the officer. Post-traumatic stress disorder is real and can have a severe impact upon the agency the officer and the officer’s family. Psychological services providers that are knowledgeable, experienced and dedicated resolve emotional issues and support the agency’s goals of responding to a critical incident aftermath with a professional approach that serves the public, the department and the officer. A police psychologist can also be a resource for the officer’s family.
The officer must be in excellent physical condition
The office may be in excellent physical condition at the time of the incident, but stress and anxiety of the lawsuit or unfair prosecution will be so influential that the officer stops working out and begins to gain weight. (Officers have gained as much as fifty or sixty pounds, in some cases, from the time of the incident until the litigation is complete.) This weight gain will cause the officer to feel physically and mentally worse and will build upon the insecurity and uncertainty the officer is already experiencing. It is important that officers look their best in and out of court. Sloppy and poor appearance on the part of the officer does not help the situation. Opinions are formed and judgments are made on the basis of appearance.
The officer must be tactically sound
Preparation for a deposition, court testimony, interviews conducted by the Department of Justice Federal Civil rights Unit, or the local prosecutor is no different from training and practicing for a felony vehicle stop. The officer must prepare for each and every potentially dangerous confrontation on the street. The events that follow such as internal investigations, political inquisitions, lawsuits, and unfair unethical prosecutions are no
less a threat to the officer’s life.
If an officer is unfairly civilly charged with violation of civil rights, excessive force, abuse of authority, etc., and the result is that the officer is placed in a two to eight year stress filled accusatory situation, the stress upon the officer and the officer’s family is extremely damaging. If the result of the unfair accusations is a punitive judgment against the officer, it can ruin the officer financially. Very few families and marriages can withstand this kind of abuse.
If the officer is unfairly and unethically charged with a crime, the entire situation is devastating to the officer, his or her entire family, the department, and law enforcement in the region. Certainly, the Rodney King Incident had a ripple effect nationwide. The King Incident ruined the lives of all of the officers involved, even those who did nothing wrong. It destroyed the police department. No one would suggest that the LAPD is a better police department today than it was in 1991. Meanwhile, lawyers made millions of dollars and Rodney King became a millionaire. His multiple run-ins with law enforcement, other than the LAPD, since then, tell us how wise the entire system is in handling situations of this kind. In the King Incident, police tactics and performance were less than exemplary. One could argue forever as to how the criminal, Rodney King, should have been handled. Most would agree that too many baton strikes were used. Most would agree that the suspect should have been “swarmed” by the officers. What was also apparent was that the one most excessive act was the stomp on the neck of Rodney King by the one officer who did nothing other than that one illegal act. Note that he was the officer who testified against the other officers. The guiltiest officer is usually the one who testifies against other officers.
Rarely are use-of-force events acts of brutality. Often the perception on the part of witnesses who do not understand police use of force or who see only part of the situation is that they are witnessing brutality when in fact it is not brutality at all, it is reasonable force.
The officer must avoid complacency
Usually, officers who are the subject of a lawsuit have not violated any law or agency policy. Since the officer knows that he has not violated any rules or laws, he will sometimes consider the entire process to be unfair and a waste of his time and energy to respond. The officer believes that because he was right in what he did, that the jury will see it as he or she sees it. Nothing could be further from the truth.
The officer will discover what many officers have experienced in the past: juries will fail to come to the right verdict because of complacency on the part of the agency, the attorney defending the case, the officer, or all three. An officer must prepare for confrontation. The fundamentals are: honesty, accurate reports of the incident, a professional investigation by the department, a good defense lawyer and close cooperation with case preparation throughout the lawsuit. Because these situations can be protracted, there may be a tendency to think the case is going away, or there may be failure to stay up-to date with reports, depositions, and issues.
Once the case goes to trial, the officer must be aware that parties connected to the case will evaluate him or her each time they see the accused officer. If the officer is perceived as acting in any way that the observer thinks is inappropriate, it may have a very negative impact upon the case.
Appearance and neatness are issues the officer must consider. Often, a dress uniform is the right choice. When that may not be the case, a business suit or business dress is a must. Bumper stickers announcing political leanings or other strongly held opinions attached to an officer’s vehicle are also not appropriate. If the officer has been working undercover and looks like a suspect, the officer should cleanup for trial.
The officer must control his/her fear
Law suits and criminal trials where the officer is the defendant will create a level of uncertainty and concern that can elevate to real fear. Certainly, some cases involve massive media coverage. There may be demonstrations and/or riots. Officers have experienced going to court and finding hundreds of angry demonstrators in the hallway outside the courtroom. The officer’s family and other people connected to the defense are sometimes harassed. Under some circumstances phone calls threatening the officers’ lives and families will occur.
Any threats to the officer and his family must immediately be reported to the officer’s department and the department where the officer’s family resides. Security steps that are appropriate should be taken. The media should be notified that the officer’s family has been threatened. The department or departments involved should call a news conference and announce that security steps have been put in place and law violators will be arrested and prosecuted.
Fear is a complex human reaction to stress. Most fear situations that officers think about are field related. An officer’s training typically includes the issue of fear and how it can be a source of failure or a resource that can enhance reaction if the fear is controlled. Fear is also intrusive to an officer’s performance in litigation. The fear surrounding a use of force incident comes from the officer being unprepared once the investigation begins. Almost all officers know they have a right to an attorney, but the officer is often afraid that if he exercises that right the department may resent it. If you think you might need an attorney, get one. Officers are often intimidated by the form and structure of the investigation process after a use of force incident begins to be reviewed and investigated. This is especially true regarding officer involved shootings.
After the officer has fired shots that either wound or kill a suspect, the officer is often whisked away from the shooting scene and taken to the station and isolated, sometimes for hours. The officer begins to become fearful of what is happening and apprehensive about the process that is taking place.
It is important for agency management to understand that little, if any, training is provided regarding the process of investigating a use of force or shooting by an officer. The officers usually learn from experience. Often the experience is a bitter one.
Have you ever been taught in any of your classes or seen in any of your operations manuals that you should assume that someone who is fleeing with a gun might use that gun; that you should at least anticipate they might use the gun?
I don’t believe you have to anticipate that a suspect fleeing is necessarily going to shoot at the police.
In other words, you think it’s reasonable to act as if the suspect will not use the gun?
Again, the suspect’s action is based on a case-by-case scenario.
Let me ask it this way. In a situation where a suspect pulls into an apartment complex with children riding bikes and walking along the sidewalks, and gets out - exits the vehicle and starts running, you know that if you assume the worst – you assume he has a gun – and you know if he uses that gun, you are certainly endangering the public, isn’t that true?
You can’t assume what a suspect is going to do.
If the suspect uses that gun, the public is in danger?
If anyone uses a gun, anybody’s in danger.
So if this suspect in the scenario, as you have drawn it, where Officer Cox pulled up behind the suspect – if that suspect uses his gun, he’s putting those individuals in the apartment complex in danger, don’t you agree with that?
I said if a suspect shoots a gun, the lives of everyone in those areas are endangered.
And so as an officer – as you put it, one of your primary responsibilities is to protect the public – what you want to do is take actions that would tend to keep the suspect from using the gun rather than actions that would cause the suspect to use the gun. Do you think that’s reasonable?
Yes. Our responsibility is to protect the public and our actions don’t control necessarily, the actions of a suspect.
No. But don’t you agree that there are times that your actions, as a police officer, could either tend to cause a suspect who has a gun to use it, and then there are times when your actions could tend to cause the suspect not to use a gun?
I wouldn’t know how to measure how many times something has prevented something, if it hasn’t happened.
Maybe I’m not making myself clear. Obviously not. You don’t think there are times when you, as a police officer, and you’re dealing with a suspect who has a gun– you don’t think there are times when your actions could diffuse the
situation and not cause the suspect to use the gun, and then in that same situation,
other actions that you take could cause the suspect to use the gun?
You can’t think of those kinds of scenarios?
Each scenario is based differently on the tactical situation and the chief objective is to preserve the public life.
All right. If the chief objective is to preserve the public life – Let me put it this way. If you have a choice between taking an action which might tend to cause a suspect to use a gun and an action which would tend to keep a suspect from using a gun, which do you think you, as an officer, should choose.
I don’t think you have a choice, because I don’t think you can force a suspect to do something.
I’m asking you a hypothetical. If you have that choice, which should you choose?
I don’t know. Psychologically, I can’t figure it out.
You don’t think you have an obligation to take an action –When you’re faced with a
situation where you could tend to cause a suspect to use the gun if you take one action,
and if you take another action, the suspect probably would not use the gun, you don’t
think you have an obligation to choose one or the other of those actions?
I don’t know how to assume that an action would tend to make a suspect shoot.
All right. So you don’t think that by sitting back and setting up a perimeter and bringing in the air support and bringing in the K-9s, that might not force a subject’s hand, versus chasing after someone who has a gun and forcing him to shoot at you? You’ve never heard of that kind of situation occurring?
I can’t say that I’ve heard of the situation of somebody forcing a suspect to shoot his gun.
Let me ask it this way. Don’t you think it’s reasonable to believe that if Officer Cox had actually stopped at the beginning of the driveway, as you have drawn it on Exhibit 8, and set up a perimeter, that Mr. Rotondo might have run over to 1606 West Peoria, and Rebecca Ray might be alive today?
You would have to ask Mr. Rotondo.
If you don’t give Mr. Rotondo something to shoot at, he’s not going to shoot, is he?
Again, it’s not – I don’t know of – I don’t know of any experience where an officer has forced a suspect to shoot his gun.
You just don’t think that can happen, do you? You, as an officer, can’t provoke a suspect into shooting a gun, can you?
I don’t think you necessarily make them shoot at you. It’s their decision. It’s a conscious decision.
What you’re saying is, it doesn’t matter what action you take, because no matter what action you take, they’re going to either shoot or not shoot, and whether or not you provoke them doesn’t – in your mind, is irrelevant; it that what you are telling us?
I don’t know what goes
through the suspect’s mind.
Several factors are critical to understand here. The glaring fact is that a sincere young officer was doing his professional and level best to apprehend a felony suspect in the tradition of good law enforcement and as he was trained to do. It is also apparent that the officer is no match for the lawyer who has practiced law for decades, is credentialed and has an unfair advantage — playing the “word game.” It is the belief of many in law enforcement that the system has become just a game of words—an unfair structured and slanted process that attorneys use to make money, with right and wrong, truth, courage, integrity, and fairness taking a back seat. Obviously, that is the case here.
It is an unfortunate fact that there is little or no training provided by police academies to prepare an officer for a deposition. Depositions are adversarial. The attorney for the police officer can only object to the questions, but the questions must be answered by the officer. Later, in the trial, the plaintiff’s lawyer reads
from the transcript of the deposition and forces the officer into a yes or no response to the questions: “Officer, in your deposition, didn’t you testify under oath that you should
have anticipated that the suspect was armed, could possibly shoot at you, and therefore, could miss you and hit a citizen?” Under this logic, when foot pursuits of suspects running from burglaries, robberies, rapes, stolen
vehicles and narcotics arrests occur, it would be an unreasonable action on the part of officers and an unreasonable endangerment to the public, if the officer attempted to pursue. Unfortunately, police departments are starting to create foot pursuit policies similar to vehicle pursuit policies.
POORLY WRITTEN POLICY
The largest sheriff’s department in the United States has a foot pursuit policy that is five pages in length and details every possible aspect of a foot pursuit. This document, as written, should be a lesson plan for training, not a policy. Policies are rules, and as such should be brief, easy to understand, and should be an asset to the young professional officer.
Words such as “reasonable” should be used in place of “necessary.” The word “generally” should be used in policies so as to allow for those incidents that confront officers wherein the officer is forced to think and react in a “reasonable” manner. For example, no deadly force policy covers those rare incidents when officers run over suspects who are trying to kill
them. Such incidents–police officers using the police vehicle as a weapon are rare, but they have happened.
In Missoula, Montana, a male Caucasian suspect fired upon an officer while the officer was patrolling his beat. The suspect was standing in the street. The officer was struck by a round fired by the suspect. The bullet penetrated the windshield of the police vehicle and struck the officer in the chest. The officer was wearing body armor and the round was stopped by his vest. The officer deliberately ran the suspect down with his police vehicle. (The officer had been correctly trained to do exactly that in a training program only weeks prior
to this event.)
Officers are put at great risk if policies are poorly written. If the officer is at risk civilly and possibly criminally because a policy is poorly worded, then so is the department and the city, county, or state the officer serves.
The general feelings the citizens of a community have about the law enforcement agency that serves them are critical to the potential of defending a use of force situation even when the force was reasonable and ethical. Perception on the part of a significant number of citizens that the police department is unfair or is using force unreasonably can create doubt and distrust that are pervasive. This distrust, fueled by special interest groups and the media, can convince the community at large that a problem of excessive force exists when there is none.
It is every officer’s obligation to be professional and ethical when using force. This is not to say that officers should be reluctant to use force or to fire rounds in response to a threat that is real or reasonably appears to be real. All too often an officer will respond to what appears to be a real threat and after the event, investigation discloses that the suspect had a toy gun or an empty gun. Critics then opine that the use of deadly force was unnecessary. In hindsight, it was not necessary, but it certainly was reasonable. If the law enforcement agency has the confidence of the community, the agency’s explanation of such an event will be accepted.
THE USE OF FORCE AND DEADLY FORCE INVESTIGATION
It is not easy to identify the biggest pitfall for law enforcement regarding the investigation of deadly force and use of force incidents. In all probability, it is the structure of the investigation that an agency adopts. The agency will adopt a process that is designed more toward trying to satisfy community critics and/or the ACLU. This often leads to treating the officer like a suspect. There is no mystery as to why the majority of officers today ask for an attorney before answering questions about a shooting they were involved in.
Although incidents of shootings and use of force have dropped dramatically during the past 25 years, there has been an increase in complaints of brutality and wrongful death. Where police departments have over reacted to community and media pressure and have initiated unreasonable procedures and unfair discipline, crime has gone up in some communities as morale and productivity has gone down. Officers leave, looking for better working conditions at police agencies that have continued to maintain professionalism, organizational pride and high morale.
The law enforcement agency is obligated to do truthful and professional investigations and to inform the public about its findings in a reasonable time frame. The officer is entitled to be treated fairly and should be confident that the investigators who conduct the investigation are of the highest quality and are specially trained to investigate officer shootings and use of force. Time and again, officers are disciplined and/or fired and after full review and appeal, it is determined that the officer was not at fault. The police chief, sheriff, or the prosecutor has reacted to community and media pressure and before all the information was in, fired and/or prosecuted the officer. All too often, the scene of the incident is not handled professionally, or evidence is lost or mishandled, or the officer is treated like a suspect.
It is important that officers have some knowledge of what constitutes a professional investigation and know how to take steps to ensure that they are being given their job rights and constitutional rights.
First, it is strongly recommended that officers carry an audio tape recorder and use it at the beginning of every contact no matter how routine the contact appears to be at the outset. The fact is that more than 60 percent of all officer involved shootings are total surprises to the officer. Therefore, as the officer can never be certain as to where a police contact will go, the audio tape recorder should be turned on at the beginning of every stop, radio call, or citizen approach. It is now apparent
that audio tapes and in-car cameras have exonerated officers time after time. There are some states, such as Oregon and Washington that have state constitutional restrictions against audio taping. However, the United States Constitution and most states allow it. It is an unfortunate fact that officers often must prove they are not guilty as opposed to the general standard of being presumed innocent and the burden of proving guilt being placed upon the prosecution.
Where agencies have issued audio tape recorders, the false complaints were positively identified in more than 90 percent of all complaints received by those agencies. It would be impossible to prove this fact to critics of the police or the media. Most police chiefs and police supervisors are shocked to learn that the false complaint percentage is so high. The ACLU has never come out in favor of officers carrying and using audiotape recorders. Ask yourself why?
Why then is the audio tape recorder often ignored as a standard issue item to field law enforcement officers? Law enforcement changes very slowly. Semiautomatic pistols were available in multiple choices of design
and function from the mid-1930s. It took 40 years for all of the silly and absurd reasons not to go to semi-autos to finally evaporate. The issue of audio tape recorders is the same.
INVESTIGATING POLICE USE OF FORCE AND DEADLY FORCE
It has been the practice of law enforcement agencies to investigate police use of force through internal affairs structures with the emphasis placed on department policy, rules and regulations. Did the officer violate policy or rules?
In deadly force cases, agencies often utilize their homicide detectives to determine if the officers committed crimes. The research tells us that almost never is an officer who uses deadly force guilty of a crime. And, almost always, the officer does not violate agency policy or rules. Plaintiffs’ attorneys will often focus on far more ambiguous issues such as failure to supervise, failure to properly train, negative retention, the use of one force option rather than another, failure to use proper containment or verbalization that was less than perfect. Plaintiffs will also dig into an officer’s private life, contacting ex-wives or ex-husbands to attempt to elicit negative commentary about the officer from an angry ex-spouse.
Understanding that litigation will often go well beyond law and policy, investigating detectives must have special knowledge that is broad based to cover all of the issues that may arise in a civil suit three or four years later. I have worked as an expert witness on cases that are a decade old and still ongoing. Detectives must know what training and equipment the department provides, why and how the training and equipment are relevant to the case, and what other methods or procedures are available in contemporary law enforcement.
Some traditional functions or procedures are done out of the “that is what we have always done” rationale. Some of these long held procedures may be in need of review.
It is usually not advisable to take and handle the officer’s gun. Any trace evidence on the gun such as a tiny piece of the suspect’s skin on the front sight, may be lost in handling the gun. The suspect may have grabbed the officer’s pistol in an effort to disarm him or her. An educated field supervisor will leave the gun untouched in the officer’s holster and monitor the officer and the holstered gun until the investigative detectives arrive and take control of the evidence including the officer’s pistol. A large number of officer-involved shootings have been viewed with doubt or skepticism because too many people handled evidence and eventually it was mishandled, lost or made unusable.
It is difficult to predict what piece of evidence will be the most important or the most significant. Very often it is clothing and often it is the suspect’s shirt. The suspect’s shirt is also the piece of evidence that is often lost or mishandled. It is often bloody and winds up in the emergency room and is thrown away by hospital staff. The shirt can often tell us distance, trajectory – positions of the suspect and officer at the time of the shooting, and may contain microscopic physical evidence. If the shirt is lost, the Plaintiff will always assert that this was deliberate on the part of the department in an effort to cover up a bad shooting.